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No Blame Divorces – When will the law finally catch up

The case of Owens Vs Owens could potentially change how divorce is done in the UK. When Tini Owens filed for divorce from her husband Hugh Owens, she did not suspect that her divorce would be one of the 1% that are declined by the court.

Having been married for nearly 40 years, she decided to leave her husband and file for divorce on the grounds of “Unreasonable behaviour”. She cited a numerous 27 examples of unreasonable behaviour but the judge was having none of it. Even more unusual is that her divorce petition was also rejected by the court of appeal who astonishingly said, that her husband’s behaviour was “to be expected in a marriage” and that “parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage”.

Tini Owens’ next step is to take her case to the Supreme Court where her lawyers will argue that Ms Owens should not have to prove her husband’s unreasonable behaviour at all.

Hugh Owens does not want a divorce and says that they should be enjoying the last years of their life together, despite the fact that they have been living apart for nearly 2 years.

The grounds for divorce

Under English law, you must be married for at least one year before you can divorce, and you can only divorce for one of 5 reasons:

Adultery

Unreasonable behaviour

Desertion

Separation for 2 years and no party contesting the divorce

Separation for 5 years (no consent for divorce is required)

In the case of adultery and unreasonable behaviour, you must blame your spouse, which means that they are allowed to contest your claims. Most don’t contest the allegations, but if they do, the plaintiff must then prove that their spouse was unreasonable or committed adultery AND that they find it intolerable to live with their cheating husband or wife.

Over half of divorces are sought on the grounds of unreasonable behaviour but over 27% of the plaintiffs admit that the unreasonable behaviours cited were trumped up just to make sure that the divorce went through quickly.

Lawyers and the public want “no-fault” divorces

Lawyers have been petitioning since 1990s for “no-fault” divorces and many other countries including the USA, Australia, Canada and New Zealand all have no-fault divorces.

Resolution, a national organisation of family lawyers committed to non-confrontational divorce, found that nine in 10 family practitioners think the law should be modernised to include no-blame divorces. Margaret Heathcote, Resolution’s national chair, said: ‘It is ridiculous that, in the 21st century, Mrs Owens has had to go to the highest court in the land in order to try to get her divorce. Resolution will be at the Supreme Court next month as interveners, showing our support for Mrs Owens and countless others like her who are either trapped in a loveless marriage and unable to get on with their lives; or forced to assign blame in order to do so. It’s outdated, it’s unfair and it’s time for things to change.’

Another problem we encounter at Divorce Club is that there is a lot of misunderstanding about blame and divorce. Many of our member believe that it is advantageous to be the ones filing for the divorce and thus doing the blaming, as they think that this will make the financial settlement more generous in their favour. This is not true. The financial statement and the custody is separate from the divorce petition.

Our members at Divorce Club also cite how unhelpful it is to have to blame someone at what is already a difficult time. Several members actually reported arguing over who should be filing for divorce and found that it made discussions around financial settlements and custody get off on the wrong foot.

One common misconception that we encounter at Divorce Club is that it is advantageous to be the ones filing for the divorce and so blaming their partner, as they think that this will make the financial settlement more generous in their favour. This is not true. The financial statement and the custody is separate from the divorce petition.

Marriages end all the time and in nearly all cases, both parties are to blame, and at the same time, no one is to blame. The truth is that people grow apart, and that we all have flaws which means that we do make mistakes. The compassionate divorce is one where both can say that they entered the marriage with love and the best intentions, but that the years of happiness are over. A no-blame divorce would make it easier for couples to thank each other for the good times and wish each other luck with the next chapter of their lives.

Dr Isabelle Hung is a co-founder of divorceclub.com and clinical psychologist. Having got through her own divorce just three years ago, she is now remarried and happy to report that divorce really is an opportunity for growth and positive change.